K. NANJAPPA Vs. R.A. HAMEED AND ORS.

JUDGEMENT

(1.) Aggrieved by the judgment and orders dated 25.6.2003 passed by the High Court of Karnataka in Regular First Appeal No. 201 of 1992, the appellants have preferred this appeal by special leave. By impugned judgment, High Court partly allowed the appeal, set aside the judgment of the trial court and decreed the suit of the plaintiff-respondents herein for specific performance as well as for recovery of possession of suit items I, II and III.

(2.) The factual background as will appear from the trial court judgment need to be highlighted and reproduced hereunder.

(3.) The plaintiff-respondent claimed to be the son of Late P. Abdul Rahiman Sab alias Jambusab. The late Jambusab had three wives. The first wife's son was Abdul Sakoorsab, who died in the year 1967. The first plaintiff and his younger brother R.A. Rasheed are the children of Jambusab from his second wife Azizabi. Through the 3rd wife Mahajambi, Jamusab had begotten 4 children namely, A. Abdul Subhan, R. Abdul Majeed, Maqubal Jan and Aktharunnisa. The children of late Jambusab could not agree to divide the properties of late Jambusab. They litigated and ultimately in R.A. 133/49-50 on the file of the High Court, a final decree was passed and the properties described in the Schedule to the plaint fell to the joint share of the first plaintiff and his younger brother R.A. Rasheed. The date of the decree is 22.08.1950. The first plaintiff and his younger brother thus became the exclusive joint owners of the suit schedule property and from the date of the High Court decree namely 22.08.1950. The first item of the suit schedule which was designed as a Cinema building was leased jointly by the first plaintiff and his younger brother R.A. Rasheed to late N.K. Subbaiah Shetty and one Rattanhalli Ramappa jointly by means of a registered lease deed dated 26.02.1951 specifying therein a period of 15 years for the running of the lease. The said lease by the terms provided inter alia for a monthly rent of Rs. 400/- to be paid in equal halves to the first plaintiff and R.A. Rasheed. The lessees had to advance Rs.10,000/- which will be treated as a charge on item no. 1 of suit Schedule. All the equipments such as cinema projector, electric generator, furniture and other accessories were purchased by the said lessees which they had to provide under the contract and the theatre was equipped for showing films. It was also a term under the lease that these equipments projector, generator etc., should become the property of the first plaintiff and his brother R.A. Rasheed on the termination of the lease. While only Rs. 5,000/- was given as advance, the expenses of the balance of Rs. 5,000/- which was retained by N.K. Subbaiah Shetty and Rattanhalli Ramappa has been accounted for and thus only Rs. 5000/- is the actual amount of advance.